An Employer Must Take Certain Steps to Assert an Affirmative Defense Against Harassment or Discrimination


If employers are going to have an affirmative defense to a claim of harassment or discrimination, pursuant to the New Jersey Supreme Court case of Aguas v. State of New Jersey, 220 N.J. 494 (2015), an employer must:

  • Create an anti-discrimination/anti-harassment policy (make it an employee’s obligation to report problems);
  • Document problems and have accurate evaluations;
  • Circulate the policy, provide training on discrimination and harassment and the policy;
  • Answer any questions about the policy;
  • Follow the policy – conduct an appropriate investigation; and
  • Don’t retaliate, including through constructive discharge.

We regularly provide annual anti-harassment/anti-discrimination training for our clients.  The training takes approximately 1 hour and 15 minutes for the employees and an additional 15 minutes for supervisors.  The training uses PowerPoint, lecture, videos and group interaction.


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